Are Catch up contributions taken into account when computing the Average Benefit % Test?

In October 2007 the IRS issued a ruling and two notices that had many people believing that 419 plans were no longer an option. While true for a couple of designs, this is not true for those plans that are deigned within the IRS rules. This article explains what the ruling and notices say, what is left and how to recognize properly designed plans.

DSN_419_article_FINAL_GALLEY.pdf

I have a Profit-Sharing Plan in which the employer has been making annual contributions = 100% of compensation and deducting the full amount on its tax return - basically ignoring 404(a)(3) which states that deductions are limited to 25% of compensation.

Has anyone experienced correcting this type of failure before through VCP or otherwise?

There is a technical operational failure (failure to follow plan document) because the plan document states that the employer contribution can not exceed the deductible amount. However, there is no example of this type of failure in the Rev Proc so I am not sure what the proposed correction would be.

I would like the proposed correction to be something like this: allow the employer to take back the contributions in excess of the deductible limit without violating the excess benefit rule and waive (or compromise in some way) the excise taxes (which are significant).

Any ideas?

Is there any guidance on what funds the forfeiture account should be invested in. Some of my clients like money market, some leave them in the funds the participant has them in, and some want them in the QDIA? I can't find anything on this.

I've been searching through the Regulations and have not found the answer I'm looking for...Can anyone confirm that the Regulations place the responsibility to amend the plan to come into compliance with 409A on the plan sponsor? Thank you.

I am submitting a determination letter request under Cycle C for an S Corp ESOP. What there a deadline by which the plan had to be amended for the final nondiscrimination regulations under 409(p)? If so, do you have a cite?

A participant failed to take a RMD for 2007.

We just took over the Plan from another Recordkeeper.

Now I am trying to calculate the 2008 RMD, and need to get the 12/31/2007 Account Market Value in order to do the 2008 RMD calculation.

Since the 2007 RMD was never done, the 12/31/2007 Account Market Value will still include the 2007 RMD amount that was not distributed.

My question is do I need to deduct the 2007 RMD amount that was never taken from the 12/31/2007 Account Market Value in order to get the true 12/31/2007 Account Market Value to calculate the 2008 RMD?

The description of asset smoothing in the proposed 430 regs seems to mimic Approval 11 of Rev.Proc. 2000-40 (i.e. average value without phase-in).

H.R. 7327 (WRERA) seems to amend the proposed reg by introducing expected earnings into the mix using a rate no greater than the applicable segment 3 rate.

Algebraically do we end up with one of the smoothing methods in 2000-40 or is it new and to be described in forthcoming guidance ?

A client is looking to start a Non Qualified Deferred Compensation Plan for 2009

They would like to give their key executives a 10% bonus on all compensation on excess of the IRS Section 401(a)(17) limit.

For example, a executive makes $500,000 in 2009. His company contribution would be $25,500 (10% * (500,000 - 245,000)).

Would this be considered a Top Hat Plan or Excess Benefit Plan or neither?

Any help you can give me would be greatly appreciated.

ALEX

I know this basic issue has been covered in another topic, where there seemed to be a consensus that different lengths of installment payments woudl be different times and forms of payment. I think that was based on the following language in the preamble

For this purpose, a series of installment payments over a predetermined period and a series of installment payments over a shorter or longer period, or a series of installment payments over the same predetermined period but with a different commencement date, are different times and forms of

payment.

What if you had a five year employment contract which stated that if an employee was terminated without cause he woudl be paid his/her base salary on a monthly basis for the remaining term of the contract. Do you have different "lengths" for the installments based on when the employee is terminated and therefore different "forms" based on the same event--separation from service?

Can a foreign employer adopt a cafeteria plan for its US employees? I know that any employer with employees subject to US income taxes can sponsor a cafeteria plan for its employees, but I don't know if this includes an employer that may be overseas or resides in Canada. Thanks so much for your help!

I already know the answer: Read the document, but I have to ask anyways:

Is a plan required to execute automatic distributions? That is, if the plan contains language saying amounts under $1,000 can be distributed without consent via cash distribution, does that mean the plan sponsor has to force people out? Our, for this example, the sponsor does not want to deal with automatic rollovers for amounts between $1,000 - $5,000, but the document contains that language. Is the sponsor required to make auto rollovers?

Thanks

If a non-key is still employed but receiving a RMD, can she change her mind and elect to stop the RMD's, again, while she is still employed?

Thanks

ER wants to make 5% of pay contribution to ERISA 403b plan for all eligible EEs.

ER also provides group health coverage to EEs per stricter eligibility requirements and do not have other group health coverage (such as through spouse).

ER would like to provide another 10% of pay contribution to ERISA 403b plan for those NHCEs that are eligible for the ER's group health coverage but for the fact they are covered under other group health coverage.

No EE would have a choice of extra pay (or any other taxable benefit) in lieu of the 5% or 10% contributions.

Problems?

I have a client who has a requirement that the participant must be employed on the last day of the plan year in order to share in the year's contribution allocation. The plan is also written that distributions cannot be made until following the end of the plan year. I have a participant who is trying to find a loophole and work on Dec. 31 and then quit that same day to be able to both receive a 2008 contribution as well as receive their money a week later in January. Is it possible to both be employed and terminated on the same day to get the benefits of both? My office keeps going back and forth on the subject and I cannot find any clear answers in my research.

Hi to all! I am a TPA and my scope of knowledge is limited to Qualified DC plans. I have several very small-employer clients who only have a plan open to allow for salary deferrals. With the re-write of the documents, I'm considering making a suggestion that they do something (??) to alleviate my annual fees along with the document fee. This is a weeding-out process for me, too, which I think is important to do every so often.

What kind(s) of retirement plan are available for these types of employers? There is one owner, but he/she doesn't defer. Well, doesn't defer enough to come close to failing ADP tests. There is actually one owner who doesn't defer at all! These plans are open to allow the few employees to be able to defer. (Mind you, their intent in the beginning, I think, was to do more ER contributions as well as owner-deferrals, too.)

Looks like the SIMPLE and SEP plans have a required ER contribution. Is there anything where an employee can put in money and have the "option" for the employer down the road?

Thanks for any input.

Same owner as my other question wants to switch from the 3% of comp to the match method. Do we need an amendment to change or is it acceptable to do either?

Jimmy

An owner wants to go back to 2007 plan year and include HCEs in the receipt of the 3% of comp allocation. At the time only the NHCEs received an allocation. Is it possible to do this? Someone said the funds had to be deposited within 12 months of the plan year end? (didn't seem right to me though)

I sure appreciate any help.

Jimmy

The Flower Magnate Luther Burbank Washington Grumps grew up as the youngest child of depression parents. He doesn't trust the stock market or for that matter Banks. He has purchased Poppy's, Inc. which has a somewhat mature population but underfunded DB plan for its 499 participants. LB (as his friends call him) wants to continue the Plan and will manage his workforce so the Plan never covers 500 participants because the word "at-risk" annoys him. He only wants to invest in the surest of financial instruments which he believes are money markets and treasuries and he doesn't care what the pundits profess, he "ain't changing his mind -- ever." He will contribute the minimum amount the law allows and doesn't care particiular what the Plan costs as he must protect his little flowers at all cost. The Plan assets long-term yield projections would fall short of the segment rates. In short, basing contributions upon the segments rates should push far too much funding into the future and will do anything but protect all those little poppies.

What are the consequences of failing to make a distribution of pre-409A deferred compensation? It appears that the distribution should have been made in 2007. Would this failure be considered to be a subsequent deferral and thus a material modification which would then subject the benefit to 409A?